17 P. 139 | Idaho | 1888
The defendant was indicted, tried and convicted of murder in the second degree, at the April term, 1888, of the district court, third judicial district, in the county of.Lemhi, and comes into this court on an appeal from the judgment.
The first point made by appellant in his brief is that the indictment does not allege the crime of murder. The charging part of the indictment is as follows: “That the said Charles Evans, on the eleventh day of November, A. D. 1886, did unlawfully, willfully, deliberately, premeditatedly, feloniously, and of his malice aforethought, in and upon one James McKee, make an assault, and that the said Charles Evans a certain pistol then and there loaded with powder and leaden bullets, which said pistol he, the said Charles Evans, in his hands then and there had and held at and against the said James McKee, then and there unlawfully, willfully, deliberately, pre-meditatedly, feloniously, and of his malice aforethought, did shoot off and discharge, and that the said Charles Evans, with the leaden bullets aforesaid, by means of shooting off and discharging the said pistol so loaded, to, at, and against the said James McKee, as aforesaid, did then and there unlawfully, willfully, deliberately, premeditatedly, feloniously, and of his malice aforethought, strike, penetrate, and wound the said James McKee, giving him, the said James McKee, as aforesaid, one mortal wound, of which mortal wound the said James McKee did die. And so the jurors aforesaid, upon their oaths aforesaid, do charge and say that the said Charles Evans the said James McKee, in manner and form aforesaid, then and there, unlawfully, willfully, deliberately, premeditatedly, felo-niously, and of his malice aforethought did’kill and murder,” etc. The felonious and malicious intent herein charged in terms qualifies and characterizes the striking, penetrating, and wounding of the deceased, McKee, and does not in terms charge that the wound was intentionally and feloniously mortal.
The appellant, in his brief, urges the proposition that “under our statute there must be an intention to kill, or the crime
The other specifications of error urged by appellant are to the instructions of the court given, and to those requested and refused. There were seven instructions asked by defendant and refused, to which refusal exceptions were taken. Of these the fourth is disposed of by our ruling on the sufficiency of the indictment. The third, sixth and seventh are based upon threats claimed to have been known to defendant, and to knowledge of the character of the parties Lyon and McKee, and to a certain assault alleged to have been made upon the witness Lyon upon a trial not connected with the assault and homicide set out in the indictment. The bill of exceptions contains no evidence whatever as to these threats, or the character of the parties Lyon or McKee, or the assault upon the trial. It does, however; state that it contains so much of the evidence as is necessary to explain the rulings and decisions of the court in the trial of the case. It is well established that the instructions should be based upon the evidence in the ease, and the presumption is in favor of the ruling of the court. There appears in the record no evidence to justify these instructions, and we do not consider' it necessary to consider them, for, if correct as abstract principles of law, they do not appear by the record to be founded on any evidence in the ease. (People v. Cochran, 61 Cal. 548; People v. Smith, 59 Cal. 365; People v. Dick, 32 Cal. 213.)
The first instruction-asked by appellant is as follows: “If the jury believe from the evidence that, on the occasion that James McKee received his mortal wound, the defendant had reason to believe, and did believe, that McKee and Lyon were about to take the life of Caleb Davis, or to do him some great bodily harm, and that there was no other means to prevent it, he would be justified in killing McKee, even if it should be shown that he was mistaken in his belief.” The second instruction asked by the defendant and refused is as follows: “If the jury believe, from the evidence, that on the occasion that James McKee received his mortal wound, the defendant
Appellant excepts to tbe first, fourth, and seventh instructions requested by tbe prosecution. Tbe first is a quotation from our statute defining murder and manslaughter, with instruction to tbe jury to find tbe defendant guilty of one of those two offenses, or not guilty. We think it justified by tbe evidence. Tbe fourth- instruction is as follows: “The jury are instructed that, while tbe law requires, in order to constitute murder, that the killing shall be willful, deliberate, and premeditated, still it does not require that tbe willful intent,
The instructions carefully explain to the jury the statute affecting the rights of defendant, and the court sees no reasonable ground of complaint. Judgment affirmed.